2015 H OT T OPICS LEGAL TRENDS IMPACTING PUBLIC TRANSIT.

2015 HOT TOPICSLEGAL TRENDS IMPACTING PUBLIC TRANSIT

RIGHT TO KNOW- WHAT DO YOU NEED TO REALLY PROVIDE?

What is a Record? What about bus videos?

Text messages?

Predecisional Deliberations?

Emails?

Legal Correspondence?

If it is a Record, is it a government record? Does the Record fall within one of the Exceptions of the

RTKL?

WHAT IS THE TRUE PURPOSE OF THE RIGHT TO KNOW LAW – HOW IS YOUR AGENCY AFFECTED?

The Pennsylvania Supreme Court has looked at the law to attempt to balance “full and frank” discussion among governmental officials and the need for transparency

Even attorney-client privileged communications may be affected and disclosure may be compelled regarding certain confidential communications between governmental actors and their attorney. See, In re: Thirty-third Statewide Investigating Committee, 86 A.3d 204 (Pa. 2014). Mental processes still enjoy protection and the nature of the communication is the issue. Bagwell, 103 A.3d 311 (Pa. Cmwlth. Ct. 2014).

THE RIGHT TO KNOW LAW IS NOT DISCOVERY

For a record to be an “agency” record, it must be in the possession of the agency. What if a record is in the possession of a consultant?

FOR DOCUMENTS TO BE PUBLIC THEY MUST RELATE TO THE GOVERNMENTAL FUNCTION OF THE AGENCY

Do you have a Right to Know Officer designated?

Time for Compliance- the 30 day extension is an important tool when faced with a request.

You are NOT required to compile information or create documents. Compiling a report from a database is NOT the creation of a record. Pennsylvania State Police v. McGill, 83 A.3d 476 (Pa. Cmwlth. 2014)

HOW ARE THE COURTS INTERPRETING EXCEPTIONS? W-2’s – these are specifically exempted based upon the

provisions of the Pennsylvania Tax Code.

Text messages If they have been deleted from the phone.

Insurance adjuster’s files- this is an important exception.

Medical records

Trade Secrets – if a request involves a trade secret or proprietary information you must notify the owner of the information.

Personal Information – your employees must have notice that a request has been made regarding their information and MEANINGFUL opportunity to object. ----A.3d. ---, PaSEA v. Commonwealth, February 2015

TAKE ADVANTAGE OF YOUR PROTECTIONS Too often authorities create their own problems by providing

information when they do not have to.

The RTK Office looks at past history when interpreting the use of exceptions- if you provide it once, you may waive the exception!

Use the 30 days that the Act provides in order to be sure of what you are providing

Remember to ask employees if you are providing information to the public

Remember to ask vendors if you are providing information to third parties if they object based upon trade secret/proprietary information criteria

DO NOT WAIVE your rights!

WHAT DO YOU DO WHEN YOU GET A REQUEST? Date the request

Determine if you wish to request the 30 day extension

Determine if you must compile documents

Determine if a 3rd party is affected and provide the necessary notifications

Provide all comprehensive basis for a denial You may not substitute a basis for denial later or provide an alternative

basis for a denial. DEP v. Cole, 52 A.3d 541 (Pa. Cmwlth. Ct. 2012)

Include an affidavit of your document search and to certify the response.

Redaction is an important tool.

SUNSHINE LAW

How do you communicate with your board? Through email?

How do you announce executive sessions? Do you monitor the content of executive sessions? Are all of your communications with your solicitor

protected? Does your Bylaws allow audio participation?

CATASTROPHIC LOSSARE YOU PREPARED FOR CHAOS?

WHAT IS A CATASTROPHIC LOSS PLAN An outline to provide ORDER in a chaotic situation

A crisis management tool A written tool to make sure that regulatory inspection,

media coordination, and emergency preparedness are all satisfied

A tool for remedial and corrective action Short term and long term plans for crisis management

A plan for mitigating business interruption

A staffing protocol

Investigative protocol

Employee management

AT THE SCENE AND IN THE OFFICE

Make sure you have a team assembled that can be easily reached for the following events: Death

Serious Injury/dismemberment

Multiple vehicle collisions/multiple victims

Property fires/destruction

Vehicle fires

Spills

CRITICAL PERSONNEL

IN HOUSE

A supervisor or other management person should be designated to handle and direct the scene of any loss

A media liaison or press personnel should be contacted

Control your employees and emotions

Management staff should be alerted due to rippling impact

YOUR THIRD PARTY TEAM

Know emergency numbers for an insurance adjuster

Call your solicitor or insurance attorney in these incidents immediately

Grief counselors

Media advisors

Scene investigator

AT THE SCENE The rules may change when faced with a catastrophic event Caution your drivers- what must you tell police

Name and license. In major cases, you should be aware that a driver could be subject to criminal charges and he has certain rights associated with his employment (Note: If driver is unsure, have him or her tell the police officer that they would like to have their supervisor present before giving a statement. In the meantime, the supervisor can contact your solicitor before meeting with law enforcement.)

Take immediate pictures and get all names of witnesses, police personnel, ambulance providers.

Be sure your team has been contacted prior to releasing a scene whenever appropriate.

FMLA- 12 YEARS AND STILL UNCERTAINTY

WHAT IS THE BARGAINING UNIT’S ROLE IN FML?

AFSCME has produced a handbook for FML to expand protections of their members.

ATU has also produced a similar handbook to educate members on their rights.

Topics in these handbooks include: Alternative enforcement procedures

The most favorable method of calculating leave

Broadening the definition of family members

Extending leave time

Negotiating a sick leave policy to allow sick leave for family members

FML Rights may be altered through the Collective Bargaining Process

FML is clear that rights may be increased or decreased by a CBA. 2652

General leave provisions are not negotiable, but the following items in your FML policy require a minimum of “meet and discuss” with your union: Substitution of paid leave for FML

The provisions for using sick leave, etc. must be the same when substituting leave

The method of calculating leave on either the rolling year, calendar year

The scope and nature of benefits during FML (i.e., what if an employee does not return to work, can you require reimbursement for insurance?)

THE RETURN TO WORK/FITNESS FOR DUTY PHYSICAL

Your policy may establish the scope and nature of the Fitness for Duty Exam – without clarification the return to work excuse is limited

You can bargain a more specific examination but it must be uniformly applied to your employees 2614(a)(4). Your return to work examinations must be “related to and consistent with business necessity”

ADA UPDATES

ADA has released new regulations that take effect in July Policy reviews should occur to ensure uniformity and the

ability to provide a reasonable accommodation: Curb to curb and door to door regulations

Flag stop policies

Bus stop accommodations

How are bus stops and bus shelters affected?

ADA – WHAT POLICIES DO YOU HAVE IN PLACE?

Do you have general policies regarding flag stops?

Backing up and down driveways?

Clearing Snow? Carrying bags? Wheelchair securement?

Disruptive passengers? Privacy policies? Blocking of aisles? Weight? Training? Lift maintenance? Oxygen tank policies?

CONTACT INFORMATION

Jill E. Nagy, Esquire

200 Spring Ridge Drive, Suite 202

Wyomissing, PA 19610

E-mail: [email protected]

(610) 939-9866

Sean E. Summers, Esquire

35 South Duke Street

York, PA 17401

E-mail: [email protected]

(717) 812-8100